Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Standard Life Assurance Company & Anor v. The Scottish Ministers & Anor [2005] ScotCS CSIH_33 (30 March 2005)
URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSIH_33.html
Cite as: [2005] ScotCS CSIH_33, [2005] CSIH 33

[New search] [Help]

Standard Life Assurance Company & Anor v. The Scottish Ministers & Anor [2005] ScotCS CSIH_33 (30 March 2005)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood

Lord Marnoch

Lady Cosgrove

[2005CSIH33]

XA3/04

XA2/04

OPINION OF LORD KIRKWOOD

APPEALS TO THE COURT OF SESSION UNDER SECTION 238 OF THE TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997

(FIRST) THE STANDARD LIFE ASSURANCE COMPANY and (SECOND) LAND SECURITIES GROUP PLC

Appellants;

against

(FIRST) THE SCOTTISH MINISTERS and (SECOND) GLASGOW AND CLYDE VALLEY STRUCTURE PLAN JOINT COMMITTEE

Respondents;

against

A decision of the Scottish Ministers dated 24 November 2003 to approve the First Alteration of the Glasgow and Clyde Valley Structure Plan, the first notice of approval having been given by public advertisement in The Herald on 26 November 2003

_______

Act: Currie, Q.C., Miss Wilson; Semple Fraser (Appellants)

Alt: Moynihan, Q.C., Wolffe; Solicitor to the Scottish Executive (First Respondents)

Keen, Q.C., Mure; Simpson & Marwick, W.S. (Second Respondents)

30 March 2005

[1] The appellants, Standard Life Assurance Company (hereinafter referred to as "Standard Life") and Land Securities Group plc (hereinafter referred to as "Land Securities"), have made applications under section 238 of the Town and Country Planning (Scotland) Act 1997 for an order quashing the decision of the Scottish Ministers dated 24 November 2003 to approve the First Alteration of the Glasgow and the Clyde Valley Joint Structure Plan 2000, the first notice of approval having been given by public advertisement in The Herald on 26 November 2003. The appellants contend that they are "persons aggrieved" within the meaning of section 238(1) of the Act, and that the decision of the Scottish Ministers to approve the First Alteration was not within the powers conferred by the Act.

[2] The Glasgow and the Clyde Valley Joint Structure Plan (hereinafter referred to as the "Structure Plan") became operative on 1 May 2002. The First Alteration, which proposed to designate as a town centre a vacant and derelict site at Ravenscraig, was approved by the Scottish Ministers (the "first respondents") without modification on 24 November 2003. The Alteration had been promulgated by the second respondents, the Glasgow and Clyde Valley Structure Plan Joint Committee. The Committee carry out the Structure Plan functions under Part II of the 1997 Act for the Glasgow and Clyde Valley area, and comprises eight constituent Councils.

[3] Section 10(1), (2) and (3) of the Town and Country Planning (Scotland) Act 1997 provides as follows:

"10.-(1) The Secretary of State may, after considering a relevant proposal, either approve it (in whole or in part and with or without modifications or reservations) or reject it.

(2) In this section, 'relevant proposal' means-

(a) a structure plan (including any alternative proposals included in

the plan by virtue of section 6(4)), or

(b) a proposal for the alteration or repeal and replacement of a

structure plan,

submitted (or resubmitted) to the Secretary of State.

(3) In considering a relevant proposal the Secretary of State may take into account any matters which he thinks are relevant, whether or not they were taken into account in the proposal as submitted to him."

The Structure Plan
[4] Schedule 1(a) of the Structure Plan, which related to Town Centre Renewal Priorities, contained a list of town centres to be safeguarded through Structure and Local Plans, and the list contained East Kilbride and Hamilton. Paragraph 7.4 of the Structure Plan stated that National Planning Policy Guideline 8 (hereinafter referred to as "NPPG8") recognised that sustaining the existing framework of town centres was fundamental to the success of a sustainable urban development strategy. Paragraph 7.8 of the Structure Plan was in the following terms:

"7.8 Consideration is being given to a proposal for a new town centre in North Lanarkshire as a component of the regeneration proposals for the former Ravenscraig Steel Works site. This proposal has been promoted on the basis that it will be linked to a planned restructuring of the existing centres of Wishaw and Motherwell. The technical evaluation of the concept has still to be completed and the need for additional retail floorspace in the Lanarkshire area is dealt with in Section 11."

[5] Paragraph 11.40 of the Structure Plan, which related to Town Centre and Retailing Developments, set out the policy principles in the following terms:

"11.40 The policy framework for town centre uses reflects the Plan's emphasis on protecting and enhancing town centres. The general principles are that proposals for new developments should:

Accord with the strategic objectives of the Plan;
Support the renewal and improvement of the existing network of town centres as the most appropriate locations for retailing and other town centre uses;
Be located in town centres, except where it can be demonstrated that no alternatives exist in or adjoining town centres;
Not have an adverse impact, individually or cumulatively, on the vitality and viability of existing Town Centres;
Encourage an efficient, competitive and innovative retail sector offering consumer choice, consistent with the overall commitment to town centres; and
Be in locations which achieve maximum accessibility by a variety of means of transport, especially public transport, walking and cycling, and so tend to reduce the use of the private car.

The above principles reflect and reinforce the guidance contained in NPPG 8, Town Centres and Retailing as revised in October 1998."

[6] Paragraphs 11.54 and 11.56 provided as follows:

"11.54 The policy approach for Town Centres Uses is as follows:

The network of town centres identified in Schedule 1(a) and Key Diagram will be protected, managed and enhanced as the preferred locations for new retail, commercial leisure and other town centre uses through Strategic Policies 1, 3 and 5;
A sequential approach will be adopted when selecting sites for retail and other town centre uses as set out in Schedule 6(c)(ii);
All proposals for development will be assessed in terms of Strategic Policy 9, and for retail development, also against the criteria in Schedule 6(c)(i);
Appropriate retail development opportunities have been identified through this Plan, in Schedules 6(c)(iii) and 6(c)(iv)."

"11.56 Apart from a sequential approach to site selection, significant retail proposals require rigorous assessment, for example, in term of impacts on town centres. The requirements for such assessments are set out in Schedule 6(c)(i). For the purposes of this Plan, significant retail developments are defined as convenience floorspace of over 1000 sq. metres gross, and comparison floorspace over 2000 sq. metres gross. This applies to proposals for new floorspace, expansions of existing developments, and changes of use."

[7] Paragraph 11.57 of the Structure Plan, under the heading "Out of Centre Retailing Locations", stated that there were significant shopping developments which were not located in or adjoining the town centres listed in Schedule 1(a). Paragraphs 11.58 to 11.60, which related to Ravenscraig, stated as follows:

"11.58 Ravenscraig, North Lanarkshire: Consideration is being given to retailing and town centre uses as part of the Flagship Initiative, in addition to industry, business, housing, leisure and environmental improvement, [para. 7.32]. There is capacity for increased floorspace within the Motherwell and Wishaw retail catchment areas, and a need to consider the quality and distinctiveness of the retail facilities. The availability of the Ravenscraig site provides an opportunity for redevelopment of a scale and character that should stimulate regeneration throughout a wider area.

11.59 A proposal has been promoted for the development of a new concept in leisure and retailing combined with other town centre functions, and incorporating 58,000 sq. m. of comparison retail floorspace, as well as major leisure facilities, with the aim of creating a substantially more attractive retail facility than is currently available. This would be linked to the existing centres of Motherwell and Wishaw where measures would be required to manage the impacts of a retail centre at Ravenscraig. The relationship to the potential redevelopment and extension of Motherwell Town Centre, which is likely to accord with policy, would also need to be evaluated. The Ravenscraig proposal requires an evaluation of its marketability, retail, environmental and transport impact assessments.

11.60 When North Lanarkshire, in consultation with the Structure Plan Joint Committee, has considered the full implications of the retail potential of Ravenscraig, it may be appropriate to expedite resolution of the strategic planning issues involved by an Alteration to the Structure Plan."

[8] Accordingly the Structure Plan, while emphasising the need to protect existing town centres, envisaged that an alteration might be needed to the Plan to incorporate a new development at Ravenscraig.

[9] Schedule 6(c)(i), headed "Assessment of Significant Retail Development Proposals", provided that all significant proposals for retail development must accord with the strategic objectives of the Plan and would be assessed against specified criteria, which included inter alia (1) impact, including cumulative impact, on the town centres listed in Schedule 1(a); (2) contribution to the improvement of the vitality or viability of town centres, particularly those in Schedule 1(a) and functional relationship with existing town centre facilities and (3) the contribution the development would make to remedying any qualitative deficiencies in existing retail provision.

[10] Schedule 6(c)(ii), which related to the sequential approach to retailing and other town centre uses, provided inter alia that the first preference should be for town centre sites, where sites or buildings suitable for conversion were available, followed by edge-of-centre sites, and only then by out-of-centre sites which could be made accessible by a variety of means of transport.

[11] Strategic Policy 9 of the Structure Plan, which related to the assessment of development proposals, stated that the case for any development which exceeded the thresholds set out in Schedule 9 had to be established inter alia in terms of the criteria set out in Schedule 6(c)(i). Schedule 9 referred to retail developments and specified over 2000 square metres (comparison) or over 1000 square metres (convenience) as being likely to be significant.

[12] Strategic Policy 10, which related to departures from the Structure Plan, stated that in the case of such a proposal consideration required to be given to the appropriateness of the development "having regard to the following criteria and any other material considerations". One of the criteria was the need for the development in terms of "specific locational need".

The Alteration to the Structure Plan
[13] The Supplementary Written Statement which accompanied the Alteration stated (in paragraph 1) that the redevelopment of Ravenscraig had a key role to play in the long term strategy for renewal and growth of the communities in the Glasgow and Clyde Valley Structure Plan area. As a result, it had been recognised in the Structure Plan (at page 31) as a Metropolitan Flagship Initiative. This policy was a response to the need for urban renewal and restructuring of this part of Lanarkshire and recognition of the potential of the Ravenscraig site to help tackle these issues.

[14] Paragraphs 3 to 7 set out the need for change so far as Ravenscraig was concerned. Paragraph 8 referred to Ravenscraig as the opportunity to create the renewal of the largest long term derelict site in Scotland. Paragraph 9 stated that the Structure Plan had recognised the need for the provision of up to 20,000 square metres gross of comparison floorspace in the Motherwell/Bellshill retail catchment area within which Ravenscraig lay, although there was a current consent in Motherwell. Paragraphs 10 to 13 dealt with Ravenscraig Town Centre. Paragraph 10 stated that the redevelopment of Ravenscraig had the potential to create a significant new community with the potential for up to 10,000 people and 12,000 jobs. Paragraph 11 stated that the outstanding issue that was delaying further progress in the implementation of the nationally agreed priorities for the area was the testing of the potential for creating a new town centre as part of the overall development. The components of the town centre would include retail and leisure facilities and must be developed in phase with the primary land uses on the site. Paragraph 12 stated that the potential form and scale of the centre needed to be related to the network of existing town centres which served the area, in particular Motherwell and Wishaw.

[15] The Supplementary Written Statement then went on to deal in paragraphs 14, 15 and 16 with "Retail Provision and Impacts". Paragraphs 14 and 15 were in the following terms:

"14. The potential retail component of the Ravenscraig Town Centre has been assessed in terms of the needs of the new community and the potential for creating a new subregional centre:

(a) Ravenscraig New Community: the provision for the new community

has been estimated to be approximately 10,000 sq. m. gross (6,500 sq. m. net) of new retail convenience and comparison floorspace; and

(b) Subregional Potential: existing Structure Plan requirements relate to

the current patterns of retailing. The creation of a new larger subregional centre would redress the current imbalanced provision of retail opportunities in the area which results in longer distanced shopping trips and a poorer provision locally.

It is noted that the identified shortfall of retail floorspace arising from the Structure Plan capacity assessment is being met by the recent consent at Motherwell.

15. The potential to develop a subregional centre has been tested at various levels for comparison floorspace. It would have varying impacts dependent on the scale of the proposal and format. The main impact of a new centre of 20,000 sq. m. net retail floorspace would be on Motherwell and Wishaw. At about 30,000 sq. m. net. floorspace the impacts would be more significant, and there would also be impacts on other Lanarkshire Town Centres which would require a range of conditions to be acceptable and continued commitment to the Lanarkshire Town Centre initiative of the Scottish Enterprise network and other stakeholders."

[16] The final section of the Supplementary Written Statement (in paragraphs 17 to 19) dealt with policy implications. Paragraphs 18 and 19 provided as follows:

"18. The development of a new Town Centre to serve the needs of the new community at Ravenscraig could provide the potential to develop a more significant role for it, in terms of retailing and other town centre functions, for the wider subregional area of North Lanarkshire. This would bring local benefits and add focus and impetus to the renewal priority of Ravenscraig. The acceptability depends upon the scale of development and its impact. The assessment indicates that in order for a proposal of about 30,000 sq. m. net retail floorspace to be acceptable, it needs to limit its scale and phasing, promote public transport, and be linked to the restructuring of both Motherwell and Wishaw. The potential of a Town Centre at Ravenscraig, to complement the existing centres, is recognised as an opportunity to create a better quality of life and environment in this part of North Lanarkshire.

19. The Structure Plan recognises therefore, that new floorspace to meet the demands of the new community and, if necessary, the existing requirements of the Plan for additional floorspace would accord with the Structure Plan. Additional floorspace beyond these requirements would have to be justified against a range of criteria. The Structure Plan policy therefore is that:

(A) The potential for a new Town Centre at Ravenscraig be safeguarded by

adding it to the list of Town Centres in Strategic Policy 1 Schedule 1(a);

(B) The town centre uses be defined through a master-plan for the

comprehensive redevelopment of the former steel works site and demonstrate the integration with the existing communities of Motherwell and Wishaw;

development of the Ravenscraig area;

(D) The provision of around 6,500 sq. m. net new retail floorspace

(comparison and convenience) for the needs of the new community would be supported;

(E) A total scale of comparison retail floorspace of around 30,000 sq. m.

net required to create a new subregional Town Centre, plus any local convenience floorspace, would be acceptable subject to it:

i. having regard to the criteria in Strategic Policy 6 Schedule

6(c)(i);

ii. being part of a programme for the support of the Lanarkshire

Town Centres, and,

iii. being controlled through legally binding agreements (e.g.

Section 75)

a. to limit the scale of net retail floorspace;

b. to be linked to the restructuring of Motherwell and

Wishaw Town Centres;

c. to support the investment with sustainable transport

provision (e.g. Green Travel Plans);

d. to contribute to the provision of a new rail station; and

e. to implement a greening programme to enhance the

Green Network.

(F) Retail development at Ravenscraig beyond the provisions of (E) above

would not accord with the Structure Plan."

[17] The consequential changes to the text of the Structure Plan were shown in an attached Addendum. It was proposed to create a new town centre at Ravenscraig, and Ravenscraig was to be added to the list of network of town centres to be safeguarded through Structure and Local Plans in Schedule 1(a). Paragraph 7.8 of the Structure Plan has been replaced by a new paragraph in the following terms:

"7.8 Consideration has been given to a proposal for a new Town Centre in North Lanarkshire as a component of the regeneration proposals for the former Ravenscraig Steel Works site. A proposal, therefore, for the development of a new Town Centre at Ravenscraig, including additional retail floorspace, will help meet identified deficiencies in the existing retail provision and Town Centre facilities as well as helping the renewal of the Ravenscraig site and regeneration of this part of North Lanarkshire. The Supplementary Written Statement (Ravenscraig - Strategic Planning Role) sets out the basis upon which a new Town Centre could be supported, including the need for any proposal to be linked, as necessary, to a planned restructuring of the existing centres of Wishaw and Motherwell."

[18] Further, paragraphs 11.58, 11.59 and 11.60 of the Structure Plan have been replaced by three new paragraphs which provide as follows:

"Ravenscraig, North Lanarkshire

11.58 Consideration has been given to retailing and Town Centre uses as part of the Flagship Initiative, in addition to industry, business, housing, leisure and environmental improvement, (para. 7.36). There is capacity for increased floorspace within the Motherwell and Wishaw retail catchment areas, and a need to consider the quality and distinctiveness of the retail facilities. The availability of the Ravenscraig site provides an opportunity for redevelopment of a scale and character that should stimulate regeneration throughout a wider area. These matters are set out in the Supplementary Written Statement (Ravenscraig - Strategic Planning Role).

11.59 A planning application has been promoted for the development of a new concept in leisure and retailing combined with other Town Centre functions, and incorporating 58,000 sq. m. gross of comparison retail floorspace, as well as major leisure facilities, with the aim of creating a substantially more attractive retail facility than is currently available. This would be linked to the existing centres of Motherwell and Wishaw where measures would be required to manage the impacts of a retail centre at Ravenscraig. The relationship to the potential redevelopment and extension of Motherwell Town Centre, which is likely to accord with policy, would also need to be evaluated. There would also require to be evaluation of the levels of impact on other centres, in particular, Easterhouse and Parkhead Town Centres in Glasgow and Hamilton in South Lanarkshire. Additionally, this Ravenscraig proposal requires an evaluation of its marketability, retail, environmental and transport impact assessments. In this context, therefore, the outstanding objections to this proposal require to be addressed in relation to and are not prejudiced by the recognition of a strategic need for a Town Centre at Ravenscraig, as set out in Strategic Policy 1(a).

11.60 The Structure Plan will support the creation of a new Town Centre at Ravenscraig to include retail floorspace and a range of other community facilities and services. Retail provision of up to 6,500 sq. m. net to serve the new community would accord with the Plan. However in terms of the overall scale of the centre comparison floorspace to serve a wider subregion (including the needs of the new community) of about 30,000 sq. m. net would be acceptable. This is however subject to its being integral to and controlled through a comprehensive redevelopment plan for the Ravenscraig site. The evaluation of any planning proposal over 6,500 sq. m. net shall take into account the requirements set out in paragraph 19 of the Supplementary Written Statement (Ravenscraig - Strategic Planning Role) including complementary action for Motherwell and Wishaw Town Centres. Such action will require to be confirmed through Section 75 or other legally binding arrangements. It will be essential, also, that the development of any retail provision should be linked through programming, to the phased development of a comprehensive redevelopment plan for the Ravenscraig area. There should be continuing priority given by stakeholders in support of other Lanarkshire Town Centres, in particular Hamilton, in the light of any Ravenscraig proposal and consideration given to the impacts on neighbouring centres within Glasgow, namely Easterhouse and Parkhead."

Planning application relating to Ravenscraig
[19] On 28 June 2001 Ravenscraig Limited submitted to North Lanarkshire a planning application for the creation of a new town centre over some 1,151 acres at Ravenscraig, partly on the site of the former steel mill. The proposal was for a mixed use development comprising up to 3,500 new dwellings, primary schools, 216,000 square metres of business, industrial and storage uses, park land areas and a centre with up to 57,600 square metres of retail floorspace together with offices and other services and hotel and leisure facilities. The present appellants, who had respectively made significant investments in the town centres of Hamilton and East Kilbride, objected to the proposal on the grounds that it was contrary to NPPG8 and the Structure Plan and, in particular, that the proposed new centre would impact adversely on the retail outlets in the centres of Hamilton and East Kilbride. On 3 March 2004 North Lanarkshire Council decided to issue planning permission for the proposed development. The present appellants then presented a petition to the Court of Session seeking declarator that the decision was ultra vires of the Council, reduction of the decision and interdict prohibiting the Council from issuing the permission in pursuance of the decision. The appellants contended inter alia that planning permission should not have been granted when the present appeals, which challenged the validity of the Alteration, were pending. On 29 July 2004 Lord Carloway, for the reasons which he set out in his Opinion, decided to grant the remedies which had been sought by the petitioners.

National Policy Guidelines
[20] National Planning Policy Guideline 8; Town Centres and Retailing (NPPG8 - revised 1998) sets out the Government's policy for town centres and retail developments. In terms of paragraph 7, one of the Government's broad policy objectives is to sustain and enhance the vitality, viability and design quality of town centres, as the most appropriate location for retailing and other related activities. Paragraph 9 is in the following terms:

"9. Protecting and enhancing town centres is therefore a key consideration which underpins Government policy. In considering whether there is a requirement for additional retail and other developments, planning authorities are expected to reflect the primacy of town centres and promote comprehensive policies and proposals for sustaining them, both through development plans and development control decisions. In support of this policy, planning authorities should adopt a sequential approach to selecting sites for new development, with first preference always being given to development opportunities in town centres. Details of the sequential approach are set out in paragraphs 12-16."

[21] In NPPG8 the term "town centre" is used to cover city, town and district centres, irrespective of size, which provide a broad range of facilities and services and which fulfil a function as a focus for both the community and public transport.

[22] Paragraph 12, which deals with the sequential approach, states as follows:

"12. Planning authorities and developers should adopt a sequential approach to selecting sites for new retail, commercial leisure developments and other key town centre uses (see also paragraphs 38 and 76-77). First preference should be for town centre sites, where sites or buildings suitable for conversion are available, followed by edge-of-centre sites, and only then by out-of-centre sites in locations that are, or can be made easily accessible by a choice of means of transport. The sequential approach should apply to all food and comparison shopping as well as other attractions and facilities usually found in town centres, unless guidance in this NPPG or the development plan provides for a particular exception."

[23] "Out-of-centre" is defined as a location that is separate from a town centre but within the urban area, including programmed extensions in approved or adopted development plans.

[24] Paragraph 15 provides inter alia as follows:

"15. Only if it can be demonstrated that all town centre options have been thoroughly addressed and a view taken on availability, should less central sites in out-of-centre locations be considered for key town centre uses. Where development proposals in such locations fall outwith the development plan framework, it is for developers to demonstrate that town centre and edge-of-centre options have been thoroughly assessed. Even where a developer, as part of a sequential approach, demonstrates an out-of-centre location to be the most appropriate, the impact on the vitality and viability of existing centres still has to be shown to be acceptable. ... "

[25] Paragraph 26 states inter alia that considerable investment had already taken place in town centres, and planning policies should seek to sustain and enhance their role, including new retailing developments and other key uses.

[26] Under the head of "assessing new developments" paragraphs 44 and 45 are inter alia in the following terms:

"44. During the 1980s and 1990s there has been investment in town centres, but more significantly there has also been growth in new forms of retail and commercial leisure developments outwith traditional centres, such as food superstores and retail parks. Cities and most towns in Scotland are now served by a range of recent major developments and others approved or under construction, often in out-of-centre locations. Where Planning Authorities consider there to be a requirement for further new developments or the expansion of existing developments, development plan policies and proposals should indicate the location, scale of additional floorspace and type of development appropriate. Such policies or proposals should be consistent with the general policies in this NPPG, including the particular considerations set out in paragraph 45 below. Accordingly, applications for further new, or expansions to existing, major retail and commercial leisure developments, should initially be assessed as to whether they are consistent with the development plan. Where there is considered to be no requirement for further developments, additional sites should not be identified in the development plan.

45. Where a proposed development is not consistent with the development plan, it is for the developer to demonstrate why an exception to policy should be made. Such proposals should be rigorously assessed by the planning authority against the policies set out in this NPPG and should be refused if all the following considerations cannot be met. The proposed development should:-

a) satisfy the sequential approach;

b) not affect adversely, either on its own or in association with other built

or approved developments, the development plan strategy in support of the town centre, taking account of progress being made on its implementation, including through public and private investment;

c) be capable of co-existing with the town centre without individually or

cumulatively undermining its vitality and viability, if necessary supported by planning conditions limiting, for example, floorspace or the range of goods sold or the level of car parking; and should not lead to changes to the quality, attractiveness and character of the town centre, affecting the range and types of shops and services that the town centre would be able to provide, or undermine leisure, entertainment and the evening economy;

d) tackle deficiencies in qualitative or quantitative terms which cannot be

met in or at the edge of the town centre; ... "

[27] Paragraph 49 contains the following statement:

"49. In order to assist the planning authority in its assessment of the development proposal including its impact on the town and other centres within the forecast catchment of the development, all applications for major retail developments over 2,500 square metres gross retail floorspace and commercial leisure developments should be supported by information provided by the developer which enables the authority to address the issues set out in paragraph 45 above."

[28] In paragraph 86 it is stated that the scope for provision of any new out-of-centre development should satisfy the considerations in paragraph 45 and should be incorporated in the development plan for the area.

[29] Paragraph 88 is in the following terms:

"88. The strategic framework in structure plans should:

set out the policy for supporting and enhancing town centres, including an assessment of how far the existing town centres might be able to meet the demands for new shopping floorspace and other uses, while contributing to consumer choice and access to new formats;
indicate whether, as part of the sequential approach, there is scope for retail developments outwith town centres; if so, indicate their scale and general location, ensuring co-ordination with expected housing, employment, or other planned developments, including transport infrastructure; and

reflect the criteria set out in this guideline against which retail and commercial leisure development proposals outwith town centres should be assessed."

[30] Reference was also made to Scottish Planning Policy 1: The Planning System (hereinafter referred to as "SPP1"). It provides an overview of the land use planning system in Scotland under current arrangements. The policy in SPP1 is aimed at planning authorities, the public and others with an interest in the operation of the planning system and should be considered alongside other SPPs and NPPGs when formulating policy and making decisions. Paragraph 9 provides inter alia that the planning system supports Scotland's prosperity by giving stability and confidence that investment will not be undermined by inappropriate development.

Submissions on behalf of the appellants
[31] The Alteration provided that the proposed new town centre at Ravenscraig is to include retail floorspace. It stated that retail provision of up to 6,500 square metres net to serve the new community would accord with the Structure Plan. However, the Alteration provided that comparison floorspace to serve a wider sub-region (including the needs of the new community) of about 30,000 square metres net would be acceptable. The appellants' attack on the Alteration was directed at the scale of the proposed retail component. They did not take issue with Structure Plan policy giving policy support for regeneration at Ravenscraig with the provision of housing, business, industry and 6,500 square metres of retail provision. However, they did take issue with the designation of Ravenscraig as a town centre or new town centre in the Structure Plan for the purpose of it being afforded the same status as Schedule 1(a) town centres. That was why the appellants were seeking to quash the Alteration in its entirety, the retail component and the rest of the development being inextricably bound up together. It was clear that the proposed new town centre at Ravenscraig included retail provision which was substantially greater than would be required to serve the new community, and the proposal was that there should be a sub-regional shopping centre at Ravenscraig. The appellants have made significant investments in the town centres of Hamilton and East Kilbride respectively, Standard Life having invested in Hamilton and Land Securities having invested in East Kilbride. Government policy recognised the importance of protecting investments in existing town centres, and the policy is to protect and enhance existing town centres. It was submitted that the scale of the retail development proposed at Ravenscraig would have an adverse impact on the town centres of Hamilton and East Kilbride, irrespective of the question as to the precise level of the significance of those impacts. The only evaluation of the impacts put forward by the respondents disclosed that there would be an adverse impact of such an order that it would require to be managed. The need for such management was shown in paragraph 19(E)(ii) of the Supplementary Written Statement by the reference to the retail provision requiring to be part of a programme for the support of the Lanarkshire town centres. In the circumstances the appellants were concerned to ensure that the retail proposal in the Alteration was made on the basis of a proper application of the policies set out in NPPG8 and approved in the Structure Plan. They objected to the proposed Alteration and their objections have been focused in the present appeals. In the case of each of the appellants the grounds of appeal were the same, other than the predicted levels of impact on Hamilton and East Kilbride respectively.

[32] The appellants did not take issue with the proposal to regenerate Ravenscraig, but they did take issue with the proposal to have a new sub-regional centre on a brownfield site without complying with the requirements of NPPG8 and the policy approach set out in the Structure Plan. It was submitted that there had been no proper evaluation of the impact of the proposed retail component at Ravenscraig, which would constitute a sub-regional centre.

[33] Counsel put forward four legal submissions:

(1) The first respondents had failed to have proper regard to the terms of

NPPG8. In particular, they had misinterpreted the policy guidance in relation to the proposals contained in the Alteration. By proceeding upon the basis that NPPG8 did not apply to the identification of new town centres in the development plan or the creation of new retail development within the new town centre, they had failed to address obvious inconsistencies between the established policy criteria in NPPG8 and the new retail proposals contained in the Alteration. The appellants did not shrink from the proposition that to succeed on this ground it would be necessary to satisfy the court that the first respondents had proceeded upon an interpretation of NPPG8 that no reasonable decision maker could have made.

Counsel referred to Secretary of State for Education and Science v. Tameside Metropolitan Borough Council 1977 AC 1014 per Lord Diplock at page 1064E; Freeport Leisure plc v. West Lothian Council 1998 S.C. 215 and R v. Secretary of State for the Environment, Transport and the Regions, ex parte Tesco Stores Limited [2001] J.P.L. 686 per Keene J. at pages 691-2.

[34] On the basis of their interpretation of NPPG8 the first respondents took the view that the sequential approach, and paragraph 45, did not apply to the proposed retail development. However, it was submitted that there were no rational reasons for such a view, and that the sequential approach fell to be applied. The first respondents had not given any coherent explanation as to why they were entitled to disregard the sequential approach. They had stated in their decision letter that NPPG8 was "not directly applicable" but their interpretation of NPPG8 had been unreasonable and perverse. In terms of NPPG8 there was no justification for distinguishing the retail provision being brought forward as part of the proposed new town from any other new retail provision. Properly understood, NPPG8 required any proposed retail development to be tested against paragraph 45. The policy relating to the sequential approach in paragraph 12 of NPPG8 is expressly stated to apply to all comparison shopping, in the absence of any specific exemption in NPPG8 or the Structure Plan. It was submitted that the Alteration fell squarely within the terms of paragraph 44 which, in conjunction with paragraph 45, was intended to provide the basis for the assessment of further new retail development brought forward in development plans. Paragraph 44 applied to all new retail developments over 2500 square metres. In terms of NPPG8, and its definition of out-of-centre, the Ravenscraig proposal could only be categorised as out-of-centre. When the Alteration was approved, and immediately thereafter, Ravenscraig had no facilities and did not fall within the definition of town centre contained in NPPG8. In particular, prior to approval of the Alteration, which related to a brownfield site, it was clearly an out-of-centre development. In the Structure Plan (at page 71) it was correctly described as an out-of-centre retailing location. When the first respondents were considering whether to approve the Alteration, they should have treated the site as being out-of-centre for evaluation purposes. It was quite unreasonable (a) to describe a brownfield site with nothing on it as a town centre and (b) to say that NPPG8 did not apply to a proposed new town and its retail component. In terms of paragraph 86 the assessment of an out-of-town centre had to be in terms of paragraph 45.

[35] It was submitted that the first respondents (i) had to have regard to the policy guidance contained in NPPG8, (ii) had to construe that guidance in a reasonable way, and (iii) had to follow it or, if not, give intelligible reasons for not following it in whole or in part. Reference was made to Scottish House-Builders Association v. Secretary of State for Scotland, 1995 S.C.L.R. 1039.

[36] It was further submitted that consideration had to be given to the purpose of the policy set out in NPPG8, which was to guide new retail development to town centres and thereby protect and enhance existing town centres, and protect investment in them. Schedule 1(a) related to existing town centres, and references in NPPG8 to protecting and enhancing the vitality and viability of town centres clearly related to existing town centres. Paragraph 45 was the means by which the Government sought to ensure that existing town centres were protected from inappropriate development. There had to be consistency in the reasoning of the first respondents in approving the Structure Plan and any Alteration thereto. If, as the appellants contended, the first respondents were wrong in concluding that NPPG8 did not apply, it followed that they had left out of account a material consideration.

[37]

(2) The approach adopted by the first respondents has been that, whilst paragraph

45 of NPPG8 was not relevant, they had taken into account the substance of it. However, they had had no material before them to justify the conclusion that a qualitative deficiency in the retail provision within this area could not be met in or on the edge of the existing town centres. They had no material before them to justify the conclusion that the proposed sub-regional centre was consistent with NPPG8.

As a consequence of misinterpreting NPPG8, the first respondents had failed to adopt the sequential approach (paragraph 45(a)), taking the view that it was not applicable in the circumstances. The conferring of town centre status on Ravenscraig at this stage was intended to create an exception to the guidance contained in NPPG8. No consideration had been given to the possibility of locating on the edge of existing centres new floorspace over and above the 20,000 square metres already identified in Motherwell and Wishaw. Further, the first respondents had not had regard to the substance of paragraphs 44 and 45, and the criteria set out in paragraph 45(b) were never addressed at all.

[38]

(3) The first respondents' decision had proceeded upon a misunderstanding,

or misapplication, of the policies of the unaltered Structure Plan and was unreasonable. To include Ravenscraig in Schedule 1(a) was perverse and unreasonable, and proceeded upon a material misunderstanding, or misapplication, of Schedule 1(a) and its supporting policies. Schedule 1(a) in the original Structure Plan was a list of those town centres forming part of the existing framework of town centres. To afford Ravenscraig the same status as the constituents of the existing framework undermined the policy of sustaining that existing framework.

Far from directing investment to existing town centres or edge-of-centre sites, the Alteration would result in investment going to an empty brownfield site. The inclusion of Ravenscraig in Schedule 1(a) had created an immediate contradiction in the Structure Plan, as Strategic Policy 1 gave priority to investment in town centres. Ravenscraig was not a town centre and may never become one. The appellants did not contend that the potential for a town centre at Ravenscraig could not be safeguarded, but submitted that the first respondents had gone about it in the wrong way. Until the new town centre had been built, the reference to impact, and contribution to the improvement of the vitality and viability of town centres, in Schedule 6(c)(i) of the Structure Plan were meaningless.

[39] The thrust of the policy contained in NPPG8 was to protect and enhance existing town centres, and the policy contained criteria for the assessment of retail development proposals in order to ensure that any new development was not sited in an inappropriate location, or was of an inappropriate scale, which would undermine the existing framework of town centres. It was also important not to undermine investor confidence. The significance of conferring town centre status on Ravenscraig was that a planning application for a town centre, including retail provision, would no longer be treated as a departure from the Structure Plan. Indeed, the application would be treated as if there was an existing town centre at Ravenscraig, and that would have the effect of circumventing the sequential approach, and could result in a conclusion that the approval accorded with NPPG8. It would be viewed as an investment directed to an existing town centre as opposed to an investment directed to an out-of-centre location. The act of conferring town centre status on Ravenscraig had the effect of undermining Strategic Policies 1 and 6(c). It was an illegitimate device which was intended to exempt the Ravenscraig development from the application of the sequential approach in relation to the 30,000 square metres of retail provision.

[40]

(4) In approaching the matter on the basis that the impact on Hamilton and

East Kilbride was acceptable, the first respondents had failed to have proper regard to Strategic Policy 6(c) as explained in paragraph 11.53 of the Structure Plan and paragraph 45(b) of NPPG8. The requirement in paragraph 19(E)(ii) of the Alteration that the proposed sub-regional centre would be acceptable subject to it "being part of a programme for the support of the Lanarkshire Town Centres" did not address the requirements of Strategic Policy 6(c) or paragraph 45(b). The first respondents could not reasonably have concluded that paragraph 19(E)(ii) addressed the requirements of Strategic Policy 6(c) or paragraph 45(b) of NPPG8. This fourth submission was intended to address the argument by the first respondents that there was in the Supplementary Written Statement sufficient comfort in terms of addressing the impact on Hamilton and East Kilbride and that their approach was conditional on matters being approved in the future.

[41] Counsel went on to submit that, at the stage of deciding whether to approve the Alteration, the first respondents had to consider whether the proposed sub-regional centre at Ravenscraig with town centre status was consistent with the objectives of Strategic Policy 6(c). The starting point of this approach was paragraph 45 of NPPG8 which required the developer, and subsequently the decision-maker, to consider whether the impact of the new development would undermine the vitality and viability of the existing town centres. Technical Report 9 disclosed that the impacts on the town centres in Lanarkshire were predicted to be on such a scale that they would require management. The only means by which the first respondents had sought to address the obvious conflict between the impact of the Ravenscraig development and the policy to protect and enhance existing town centres was through the criteria in paragraph 19(E)(ii) of the Supplementary Written Statement. In terms of NPPG8 there were two means by which the existing town centres could be protected from inappropriate new development. One was to direct new investment to existing town centres by the application of the sequential approach. That had not been done and would clearly not be done at a later stage, as the principles of location and scale would by then be taken to have been established. The second method by which the adverse impact on the existing town centres could be addressed was to apply paragraph 19(E)(ii). But the first respondents had stated, in their decision letter, that that was to be viewed as being a local planning matter. They have thus abdicated to the local planning authority the responsibility of ensuring that any adverse impacts on other towns are addressed, although that is a strategic issue which should have been dealt with by the first respondents. There was no indication at strategic level of the nature or extent of the programme of support which would be required. The real issue was whether it was reasonable for the first respondents to allow the paragraph 19(E)(ii) programme to be addressed by the local planning authority when an application for planning permission was being determined. At the time the Alteration was made, a planning application had already been lodged and considered by the first and second respondents, and some detail could and should have been provided in the Alteration as to the content of the proposed programme of support. It was not true to say that the planning application which had been made was only one possible option. There was a clear link between that planning application and the Alteration, and the application had not been called in by the first respondents. They should have requested that the Ravenscraig proposal be considered in conjunction with the longer term strategy for the protection of town centres. Such an approach would have accorded with the reasoning of the first respondents when they approved the Structure Plan and stressed the need to provide further policy guidance on town centres and retailing for the period beyond 2006. As Lord Carloway observed in his Opinion (at page 28), in relation to paragraph 19(E)(ii), the planning authority dealing with Ravenscraig, namely North Lanarkshire Council, would not be in a position to achieve the required programme of support, at least on their own, as it covered areas outwith their ambit. It had been unreasonable for the first respondents to leave the programme of support, and the issue of phasing, to be dealt with by the local planning authority. By doing so, they had been unable to reach an informed decision as to the significance of the impact on existing town centres.

[42] Counsel referred to Wordie Property Co. Ltd. v. Secretary of State for Scotland 1984 S.L.T. 345 per Lord President Emslie at pages 347-8, and submitted that in the present case the respondents had failed to take into account a relevant consideration, namely paragraphs 44 and 45 of NPPG8.

[43] The appellants' contention was that the Ravenscraig proposal did not constitute a town centre within the meaning of NPPG8 or the Structure Plan, but was an out-of-centre development. It was subjected to the requirement of paragraph 45 of NPPG8 by paragraph 86 as out-of-centre development and by paragraph 44 as further new development. With regard to the 6,500 square metres of retail floorspace for the new community, that could be justified in accordance with policy. The appellants' position was that anything over 2,500 square metres had to be assessed by virtue of paragraph 49, in accordance with the criteria set out in paragraph 45. A retail development of 6,500 square metres would be likely to be shown to be acceptable because of the specific locational need and the fact that it would be local to demand and would be unlikely to raise policy issues in relation to its predicted impacts on existing town centres.

[44] The first respondents had adopted the wrong approach when they had asked themselves whether NPPG8 precluded the establishment of a new town centre at Ravenscraig. The correct approach had been to ask whether the retail proposals for the new town were consistent with NPPG8 and, separately, whether the designation of a non-existent town centre was consistent with NPPG8. It was wrong that Ravenscraig should be treated as an existing town centre. It should only be regarded as an existing town centre once it was in existence, and only then could a proper evaluation be made in terms of its functions. NPPG8 only applied to existing town centres. In the circumstances the reasoning supporting the Alteration was fallacious.

[45] The appellants did not found on the way in which the first respondents had tried to control the scale of the impact of Ravenscraig on existing town centres. What was objectionable was the approach by the first respondents in approving around 30,000 square metres of retail floorspace without proper consideration being given to the evaluation of that proposal. While the proposal for 30,000 square metres was subject to certain conditions, these conditions were not sufficient to ensure that the impact of that retail development on other town centres would be properly managed and would not undermine the Structure Plan strategy. In particular, the appellants criticised the criteria contained in paragraph 19(E)(i) and (ii) of the Supplementary Written Statement and the absence of any proper control over the phasing of the development, the first respondents having accepted that phasing was necessary and was a strategic planning issue. Those criteria were clearly not sufficient for the purpose. Phasing was, in effect, being placed in the hands of the local planning authority, and it was quite possible that Ravenscraig could end up as a retail-led development, with the retail element being in position before any other development had taken place. There was nothing to prevent retail trading beginning even if there was no housing on the site. It was submitted that no reasonable decision-maker could have approved the Alteration when it contained such inspecific criteria in relation to phasing and no adequate protection against a retail-led development.

[46] All four grounds of challenge related to the approach of the first respondents in approving the Alteration. They related to the proposal to locate a massive retail development at an out-of-centre location and to confer town centre status on Ravenscraig. In the circumstances the Alteration should be quashed in its entirety.

Submissions on behalf of the first respondents
[47] Counsel for the first respondents, the Scottish Ministers, emphasised that the appeal related to approval of the Alteration, not consideration of an application for planning permission, the functions of strategic planning and development control being quite different. The Alteration gave policy support to a wide range of facilities and services at Ravenscraig, not just the proposed retail development. Further, while the appellants had approached the Alteration as if it had approved a retail development of 30,000 square metres, that was not the case. As was stated in paragraph 19 of the Supplementary Written Statement, a total of around 30,000 square metres would be acceptable but only if certain specified criteria were met.

[48] The appellants had argued that the first respondents had not adopted the sequential approach to retailing and other town centre uses (Schedule 6(c)(ii)), but it was important to appreciate that what had been approved in the Alteration was a new town centre as part of a phased comprehensive redevelopment, not an out-of-centre development. The impact of the proposed retail component on other town centres would depend on the scale of the actual development being proposed. A planning application could be refused if it would have an unacceptable impact on other town centres, but that was a matter for the local planning authority.

[49] Counsel for the first respondents then presented two legal submissions. In the first place, matters of planning judgment were the exclusive preserve of the planning authorities or the first respondents (Tesco Stores Limited v. Secretary of State for the Environment [1995] 1 WLR 759 per Lord Keith of Kinkel at page 764H and Lord Hoffmann at page 780F-H). Secondly, in relation to section 238 of the 1997 Act, which permitted a "person aggrieved" to question the validity of an alteration to a structure plan on the ground that it was not within the powers conferred by Part II of the Act, it was not disputed that the appellants could rely on the limitation of the powers of a public authority, but that principle had to be applied in light of the subject-matter and the statutory context. The ultimate question was whether, in that context, what had been done was within the powers conferred by the Act. The scope for altering a structure plan was very broad and involved the formulation of policy, which meant that matters of planning judgment had to be considered. Section 10(1) gave a very wide discretion to the first respondents, and in terms of section 10(3) they were entitled to take into account any matters which they thought were relevant. The case of Wordie Property Co. Ltd. v. Secretary of State for Scotland, supra, which was founded on by the appellants, was a development control case. In the present case, the first respondents had to consider issues of planning judgment and policy formulation in a statutory framework which gave a wide discretion to the decision-maker. While the appellants' challenge had been mounted on the footing that the approach of the first respondents had been irrational, it was submitted that it could not be categorised as such in the sense in which that term was defined by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at page 410G-H.

[50] Counsel then proceeded to address the policy justification for the Alteration. The preparation of a structure plan, or an alteration thereto, involved taking a strategic view of the structure plan area and its requirements. In the case of a proposed alteration, it would be necessary to look beyond the existing situation and consider change. Ravenscraig was a large brownfield site, the regeneration of which was regarded as having national significance. The second respondents, comprising all of the eight Councils who had been involved in the preparation of the Structure Plan, had put forward the proposed Alteration, and the development of Ravenscraig was seen as having potential benefits over a much wider area. Reference was made to paragraph 7.32-C of the Structure Plan and paragraph 8 of the Supplementary Written Statement. It was in that context that the proposed retail development in excess of 6,500 square metres fell to be considered. There was no conflict between the broader strategic policies contained in the Structure Plan and the Alteration itself.

[51] With regard to the policy justification for designating Ravenscraig as a new town centre, the statements contained in paragraph 10 of the Supplementary Written Statement had not been challenged by the appellants. It could not be said to be irrational to add Ravenscraig to the list of existing town centres in Schedule 1(a) in order to safeguard its potential as a town centre. It was certainly not a device to circumvent the application of NPPG8 to the suggested retail component. There were genuine and cogent policy reasons for promoting a new town centre at Ravenscraig on the brownfield site, and in the circumstances it was rational to give the proposed town centre policy support. Regard must be had to the totality of the proposals in the Alteration, which would be of national importance. If Ravenscraig had not been added to Schedule 1(a), then any retail development in excess of 6,500 square metres would, by operation of the sequential approach, have had to be directed to other locations. While it was admittedly unique to endeavour to create a new town centre under the planning legislation, there was a necessary element of mutual protection involved in that it was right that Ravenscraig should be placed on an even footing with existing town centres. Schedule 6(c)(i) applied to any significant retail development proposal, whether it was in or out of a town centre. Counsel referred to the passages in the Alteration which referred to retail provision. The policy arguments in favour of the Alteration were very specific to the Ravenscraig site and could not be regarded as having more general significance.

[52] Turning to NPPG8, it was well-known that it was introduced in response to the effect that out-of-centre retail developments were having on town centres. It did not preclude the designation or promotion of a new town centre where there were good policy reasons for it. It did not address a situation which involved the designation of a new town centre or how that issue should be approached. It was wrong to take a literal interpretation of a policy guideline and seek to apply it to a situation which had not been anticipated when the guideline was issued. In the circumstances it was submitted that NPPG8 did not apply to the retail proposal at Ravenscraig, as the proposed retail component was to be in a new town centre and not in an out-of-centre location. The proposed development at Ravenscraig had to be looked at as a whole, not as a retail development on a brownfield site. The sequential approach was not applicable and, even if it was applicable, it was satisfied in this case. It was clear that there were good policy reasons for preferring town centre locations for new retail developments, rather than out-of-centre locations, and for encouraging investment in town centres. However, in relation to NPPG8 the correct question to be addressed was whether the proposed development at Ravenscraig was consistent with it. Reference was made to Scottish House-Builders Association v. Secretary of State for Scotland, supra, per Lord Sutherland at page 1043E. In any event, it was clear from the terms of the first respondents' decision letter approving the Alteration that they did not ignore the terms of NPPG8. In particular, apart from the sequential approach, the factors set out in paragraph 45 had been given consideration. However, unless the appellants could show that the first respondents' approach to NPPG8 was irrational and perverse, this ground of appeal must fail.

[53] The cases of Freeport Leisure plc v. West Lothian Council, supra, and R v. Secretary of State for the Environment, Transport and the Regions, ex parte Tesco Stores Limited, supra, demonstrated that (1) policy documents like NPPG8 do not lay down rules of law, (2) a policy document should not be construed as if it were a statute and (3) proper interpretation of policy may well involve a consideration of its purpose and its proper functions in relation to other policies. The court should only intervene in relation to the interpretation of a policy if the meaning ascribed to it was perverse or otherwise bad in law (ibid per Keene J. at page 692). It was for the first respondents to identify the circumstances in which their own policy was intended to apply. It was, however, accepted that a new retail development which was not consistent with the development plan may well need to be addressed under paragraphs 44 and 45, even if it was in a town centre. If the development was in a town centre, as it is in the present case, then the sequential approach, if applicable, was automatically satisfied. While the new town centre and around 30,000 square metres of retail provision at Ravenscraig were not in the original Structure Plan, it was, of course, proposed that the Alteration should change the Structure Plan in both respects. It would have been artificial to designate a new town at Ravenscraig and put in the proposed retail component at a later stage. The proposed retail component could not ignore the intention to have a new town centre at Ravenscraig. The existing situation was not in the minds of those who drafted NPPG8.

[54] The appellants had sought to argue that NPPG8 meant that significant new retail developments should be directed to existing town centres, and that the proposed Ravenscraig town centre was not yet in existence. However, the thrust of NPPG8 was to give preference to town centres for new retail developments, and the Alteration proposed that there should be a new town centre at Ravenscraig. It was recognised that a town centre retail development may need to be assessed to take account of its impact on other town centres. Paragraphs 44 and 45 applied to a proposed retail development which was not consistent with the development plan and, in that event, would apply to town centre and out-of-centre developments. Schedule 6(c)(i) and (ii) set out very similar criteria to those contained in paragraph 45. Paragraph 45 contained a good summary of the matters to be addressed, but not all the criteria had to be satisfied before a proposal was included in the development plan. As NPPG8 did not address the issue of how to approach a retail development in the context of a proposal to designate a new town centre, paragraphs 44 and 45 were not directly applicable in this case. However, the first respondents did address the terms of Technical Report 9 which related to the impact on other town centres and which they considered to be a relevant matter in terms of section 10(3) of the Act. It was significant that the appellants had not put forward any contrary material relating to the potential impact of the proposed retail development at Ravenscraig on Hamilton or East Kilbride. While the first respondents were not obliged to comply with NPPG8, they did, in fact, deal with a number of the issues which were raised in the guideline.

[55] The appellants had argued that the first respondents should have applied the sequential approach to the retail proposal for Ravenscraig, but as the retail provision is to be in a new town centre, the sequential approach was satisfied. It would have been quite unrealistic to regard the retail floorspace as being intended to be provided at an out-of-centre location. If there was no successful challenge to the decision to designate Ravenscraig as a new town centre, then it could not be said to be irrational to take the view that the sequential approach was not effectively an issue. The retail component was proposed as part of a comprehensive redevelopment. It was also suggested by the appellants that even though there was to be a town centre at Ravenscraig, it had been wrong to designate it as a town centre in Schedule 1(a). However, paragraphs 10 and 11 of the Supplementary Written Statement set out the reasons for promoting Ravenscraig as a town centre, and not simply as a new community, and the original Structure Plan had foreshadowed the need for Ravenscraig to have town centre status.

[56] With regard to the impact on other town centres, as the threshold of 2,000 square metres of comparison floorspace in Schedule 9 was exceeded, the criteria set out in Schedule 6(c)(i) had to be met, which included the impact on town centres listed in Schedule 1(a), even if the proposed development was in a town centre. The fact that there was an impact on town centres did not necessarily render the proposal unacceptable in strategic planning terms. Schedule 6(c)(i) gave meaningful protection to other town centres as the scale of proposed retail development at Ravenscraig could be a reason for refusing planning permission. However, an accurate assessment of the impact of a retail development of more than 6,500 square metres at Ravenscraig would depend on the nature of any planning permission and the circumstances then prevailing, and that approach could not be regarded as perverse. The impact of the proposed retail development at Ravenscraig on other town centres was addressed in Technical Report 9 which contained the basis for an exercise of planning judgment which, it was submitted, could not validly be impugned. In light of the information contained in Technical Report 9, which proceeded on a number of different hypotheses, the first respondents were entitled to take the view that retail floorspace in excess of around 30,000 square metres would not be acceptable, but that around 30,000 square metres would be acceptable provided that the specified criteria were met. It was also reasonable to leave over details of a section 75 agreement until a planning application was actually made. Similarly, the particulars of a programme for the support of the Lanarkshire town centres could not be determined until a planning application was made, and the nature and scale of what was being proposed, and its timing, were known. It was proposed that there should be restructuring of Motherwell and Wishaw town centres as well as a programme for the support of the Lanarkshire town centres if that proved to be necessary. The Alteration made it clear that it was lending support to the general concept of such a programme, without prejudice to consideration of any particular planning application on its merits. The Alteration did not relate only to the application for planning permission which had already been made. Indeed, one or more of the second respondents had objected to that application. A strategic structure plan, which gives general guidance, could not lay down detailed conditions appropriate to a particular planning application. While paragraph 19(E)(ii) of the Alteration referred to the programme for the support of the Lanarkshire town centres, there was no information before this court which would entitle it to conclude that the level of impact of the current application, or any other application, was such as to necessitate a programme of support. If a programme of support proved to be necessary in the case of a particular application for planning permission, there was a network of public agencies already in place and committed to promoting Ravenscraig on a joint basis. Reference was made to the Metropolitan Flagship Initiatives (pages 30-32 of the Structure Plan) and the Lanarkshire Town Centre initiative of the Scottish Enterprise network (paragraph 15 of the Alteration). Further, all the second respondents had committed themselves to joint action towards the regeneration of Ravenscraig. If it transpired in the case of an application for planning permission that a programme for the support of the Lanarkshire town centres was not necessary, the local planning authority could grant planning permission without such a programme in place provided that reasons were given for departing from paragraph 19(E)(ii). If a programme of support was needed, one way in which it could be achieved would be by means of the imposition of a suspensive condition. It was, of course, open to the first respondents to call in any planning application. There was sufficient material in Technical Report 9, particularly paragraphs 12-14 thereof, to justify the alleged deficiencies in the existing retail provision.

[57] So far as phasing was concerned, the retail provision had to be part of a phased comprehensive redevelopment. Reference was made to the new paragraph 11.60 contained in the Alteration. A retail development in isolation at Ravenscraig would not accord with the Structure Plan, and would be open to challenge.

[58] On the whole matter it was submitted that the approach of the first respondents in approving the Alteration could not be regarded as either perverse or irrational. There was no merit in the other criticisms advanced by the appellants, and the appeal should be refused.

Submissions on behalf of the second respondents
[59] Counsel for the second respondents began by making a number of general observations. In the first place, it was stressed that the Joint Committee were responsible for a structure plan at a strategic level, not the preparation of a local plan or the consideration of an application for planning permission. They had submitted the proposed Alteration to the first respondents. It was important to recognise that the purpose of a structure plan was to guide future development of the use of land and identify suitable locations. It dealt with planning policy and made general proposals, and constituted a strategic overview of development in the whole structure plan area. In this case, what was contained in the Structure Plan and the Alteration was the planning policy of each of the eight Councils involved. It had necessitated long term planning and covered the period until 2020. Secondly, the designation of a town centre at Ravenscraig had been the result of professional planning judgment concerning urban renewal opportunities at that location. All the eight Councils involved had agreed on the need for the Alteration. It was submitted that the regeneration of Ravenscraig without a town centre would simply be bad planning, and that the planning case for a new town centre was compelling. Thirdly, once a new town centre was judged to be a proper designation for Ravenscraig, the planners, and then the first respondents, had to address the question of what might be the appropriate retail component to be allowed there. That involved a consideration of how best the opportunity at Ravenscraig should be used to benefit the immediate urban area and the wider sub-region. Fourthly, the Structure Plan together with the Alteration not only designated a town centre at Ravenscraig, but also set strict criteria in relation to the retail provision. Many planning judgments involved some impact on other developments, but there was no golden rule that an adverse impact was illegitimate or that it must be managed. So far as the Alteration was concerned, the second respondents had not been motivated solely by the planning application which had been lodged, although it was a factor which was taken into account. Indeed, two of their members opposed the application, as did the company which had made the application, as it objected to the retail provision being capped at 30,000 square metres. It could not be known how many applications for planning permission for development at Ravenscraig would be made in the future. The development of Ravenscraig was linked to a whole series of initiatives. Technical Report 9 explained why the Alteration was being put forward, and it was accepted that regard must be had to the effect of the proposed development on other town centres.

[60] While the attack by the appellants related to the scale of the retail provision at Ravenscraig, it had to be recognised that there were a wide variety of planning issues at stake (paragraph 9 of the Supplementary Written Statement). Ravenscraig was the largest urban derelict site in Scotland, and has already been designated as an urban renewal area (Structure Plan, Schedule 1(b)) and has been safeguarded as an inward investment location. It had been derelict for about ten years. The importance of the site at Ravenscraig had been stressed repeatedly in the original Structure Plan. Paragraph 7.8 referred to the proposal for a new town centre at Ravenscraig as a component of the regeneration proposals for the former Ravenscraig Steel Works site, and the need for additional retail floorspace in the Lanarkshire area, but at that stage more work had needed to be done. New retail floorspace may be needed for qualitative reasons as well as quantative deficiencies. The Structure Plan recognised the potential for Ravenscraig to create positive benefits across a wider area than the immediate catchment area.

[61] The decision to designate a new town centre at Ravenscraig had been an exercise of planning judgment which was fully justified, as was the decision to add it to the list of existing town centres in Schedule 1(a). This had been done to safeguard the site for the proposed town centre. One of the objectives of a structure plan was to safeguard suitable locations for specified future development. Thus, Strategic Policy 5 of the Structure Plan safeguarded two medium-sized industrial sites, including Ravenscraig, although there was at present no industrial development on either site. NPPG8 afforded no assistance to planners seeking to identify a new town centre and, in particular, it did not set out criteria to be applied to the creation of a new town centre, the guideline having been produced against the background of major out-of-centre retail developments in the 1980s and 1990s. In the designation of a new town centre, the extent of the retail component was only one of the issues to be considered. The addition of Ravenscraig to the list of town centres in Schedule 1(a) was for the purpose of safeguarding it as a potential town centre, and was fully justified on planning grounds. It had the effect of protecting the site from other unsuitable development. A structure plan looked to the future. It could not be said to be perverse to seek to protect an important location for a particular use in the future.

[62] Once the decision to designate the new town centre had been made, the second respondents had to address the other strategic issues, including whether there was potential to take advantage of the new town centre to enhance the quality of retail provision in the wider area, in a way which would be consistent with the aims of the Structure Plan. The Structure Plan required that the creation of a new town centre should be assessed in terms of the potential impacts on other retail centres. Such an assessment did not involve the application of NPPG8. The necessary assessment had been made and was set out in Technical Report 9 which related to the scale of the retail development that might be able to be incorporated in the new town centre. In paragraph 6 of the Report reference was made to additional retail floorspace based on improvements to the quality of retailing. The Report dealt with the current retail provision, and the deteriorating provision in retailing terms, of Motherwell and Wishaw town centres. North Lanarkshire was poorly served compared to other sub-regional centres. The assessment of the impacts of a new town centre at Ravenscraig was set out in paragraphs 16-22 of Technical Report 9. That assessment by the second respondents was a matter for their expert judgment and it was significant that no competing assessment, or different material, had been put forward by the appellants. The potential impact of various development scenarios was set out in Table 10 at paragraph 18, but it was observed that the impacts were likely to be lower once the new town centre had been built. Paragraphs 17-19 of the Supplementary Written Statement set out the policy implications of the retail floorspace component at Ravenscraig and, in particular, the criteria against which floorspace, additional to the demands of the new community, would require to be justified. The conclusions were set out in paragraph 22 of the Report. It was stated that a retail development of over about 30,000 square metres would be likely to have a significant impact on neighbouring centres outwith the immediate catchment areas of Motherwell and Wishaw and therefore would not accord with the Structure Plan. Accordingly, paragraph 19(E) of the Supplementary Written Statement limited the total scale of comparison retail floorspace at Ravenscraig to around 30,000 square metres, provided that certain conditions were satisfied. In the event of a planning application being received, there would require to be an evaluation by the local planning authority of the levels of impact on other town centres (see the new paragraph 11.59 in the Structure Plan Written Statement) before it could be confirmed as being in accordance with the Structure Plan policies.

[63] NPPG8 contained policy guidelines for the benefit of inter alia planning authorities, but they were not to be construed like a conveyancing instrument. There was nothing in NPPG8 which stated that it applied to the creation of a new town centre, or that a new town centre had to be identified as an out-of-centre development. The concept of a new town centre was simply not addressed in NPPG8. Properly construed, NPPG8 and, in particular, paragraph 45 thereof, was not directly applicable to the designation of a new town centre. NPPG8 did not apply the sequential test to a new town centre, nor did it purport to do so. However, Schedule 6(c)(i) of the Structure Plan did apply in this case and, in particular, the issues of impact and the contribution to the improvement of the vitality and viability of town centres were taken into consideration. The second respondents were aware of the policies set out in NPPG8, including the criteria in paragraph 45, but did not take the view that they had to be complied with so far as the proposed retail provision at Ravenscraig was concerned. However, while NPPG8 was not directly applicable, the second respondents did take account of factors set out in paragraph 45.

[64] In the Supplementary Written Statement there were a number of references to the need for phasing, but it was unrealistic at the strategic policy level to give further specification. While it was suggested by the appellants that the development of Ravenscraig could be retail-led, it was submitted that it could not be retail-led in the sense of the retail component being provided and the remainder of the development following many years later. The Alteration required phasing of the comprehensive redevelopment, including the retail component. Strategic Policy 9 of the Structure Plan and Schedule 6(c)(i) applied to all development proposals involving more than 2,000 square metres of comparison retail floorspace. Paragraph 19(E)(ii) referred to around 30,000 square metres being acceptable if it was part of a programme for the support of the Lanarkshire town centres. It was submitted that in the case of any planning permission involving around 30,000 square metres of retail development, the local planning authority would be bound to secure compliance with paragraph 19(E)(ii), which contained a statement of principle. There was no reason why it should not work in practice, it being ultimately a matter for determination by the local planning authority. It was clear that the extent of the impact on other town centres could depend on a large number of different factors, and it was not known at this stage how many planning applications for development at Ravenscraig would be made in the future, or the circumstances which would obtain when each application was made. There were a number of different ways in which support, if it proved to be necessary, could be provided. It was not perverse or unreasonable to leave the programme of support as a statement of principle in the Structure Plan. That was as far as the Structure Plan could properly go, as otherwise it would impinge on the local plan and the functions of the local planning authority.

[65] It was the submission of the second respondents that the planning decisions which had been taken in the course of formulating the terms of the Alteration properly reflected Structure Plan policies and relevant policy guidelines. The appeal should be refused.

Decision
[66] This appeal has been brought under section 238 of the 1997 Act on the ground that the Alteration was not within the powers conferred by the Act, and the appellants have invited the court to quash the Alteration in its entirety.

[67] The creation of a new town centre at Ravenscraig, including a retail facility, was clearly foreshadowed in the original Structure Plan. Paragraph 7.8 stated that consideration was being given to a proposal for a new town centre in North Lanarkshire as a component of the regeneration proposals for the former Ravenscraig Steel Works site, and that the technical evaluation of the concept had still to be completed. Ravenscraig is a large brownfield site, and is the largest long-term derelict site in Scotland. Schedule 1(b) had designated it as an urban renewal area, and the regeneration of Ravenscraig, Motherwell and Wishaw was recognised as a Metropolitan Flagship Initiative which was of national importance. Paragraph 11.58 stated that consideration was being given to retailing and town centre uses as part of the Flagship Initiative, in addition to industry, business, housing, leisure and environmental improvement, and that the availability of the Ravenscraig site provided an opportunity for redevelopment of a scale and character that should stimulate regeneration throughout a wider area. Paragraph 11.60 stated that when North Lanarkshire, in consultation with the Structure Plan Joint Committee, had considered the full implications of the retail potential of Ravenscraig "it may be appropriate to expedite resolution of the strategic planning issues involved by an Alteration to the Structure Plan".

[68] The Alteration supported the creation of a new town centre at Ravenscraig to include retail floorspace and a range of other community facilities and services. The components of the town centre were set out in paragraph 11 of the Supplementary Written Statement and were to be developed in phase with the primary land uses on the site. In the Supplementary Written Statement it was stated that the retail provision for the needs of the new community at Ravenscraig had been estimated to be approximately 6,500 square metres net of new retail convenience and comparison floorspace, and that such a provision would be supported. However, the development of a new town centre could provide the potential to develop a more significant role for it, in terms of retailing and other town centre functions, for the wider sub-regional area of North Lanarkshire. It stated that a total scale of comparison retail floorspace of around 30,000 square metres net required to create a new sub-regional town centre, plus any local convenience floorspace, would be acceptable subject to the criteria set out in paragraph 19(E)(i),(ii) and (iii) being met. The appellants did not oppose the regeneration and redevelopment of Ravenscraig, nor did they oppose the provision of around 6,500 square metres of new retail floorspace for the needs of the new community. Their concern related to the policy statement in the Alteration to the effect that around 30,000 square metres of comparison retail floorspace would be acceptable if the specified criteria were met, as they were apprehensive that a new retail provision of that size would have an adverse effect on the town centres of Hamilton and East Kilbride where they had made substantial investments. They have sought to quash the Alteration in its entirety on the basis that the proposed retail provision and the rest of the proposed redevelopment were inextricably linked.

[69] In the course of the hearing there were two principal areas of dispute, namely (1) whether the inclusion of Ravenscraig in Schedule 1(a) as a town centre to be safeguarded through structure and local plans was justified and (2) whether NPPG8 applied to the retail component, particularly the proposed 30,000 square metres of retail floorspace, which had been provided for in the Alteration.

[70] So far as the inclusion of Ravenscraig in Schedule 1(a) is concerned, the justification for it in the Supplementary Written Statement was that it was safeguarding the potential for a new town centre at Ravenscraig. On the other hand the appellants contended that Schedule 1(a) was intended to safeguard existing town centres whereas Ravenscraig was simply a large derelict brownfield site. The appellants accepted that the site for the proposed town centre at Ravenscraig could be safeguarded, but alleged that the respondents had gone about it in the wrong way, although we were not told by the appellants how the safeguarding should have been achieved.

[71] It is clear that a structure plan looks to the future. It provides a long-term vision, looking forward at least ten years, as part of an overview of the area's development requirements. It identifies priorities for urban and rural regeneration. If change is proposed, it indicates the proposed long-term nature, scale and location of the change. It was stated (in paragraph 6.4) that the Structure Plan wished to see long-term vacant and derelict land eliminated over the next twenty years. Joint Policy Commitment 1 provided that priority should be given to the joint promotion of the regeneration of Ravenscraig which was recommended as a nationally important Metropolitan Flagship Initiative. The Alteration to the Structure Plan provided for a phased comprehensive redevelopment of the Ravenscraig site, including housing, community facilities, retail and leisure facilities. The decision to proceed with the comprehensive redevelopment resulted from an exercise in planning judgment and was not challenged by the appellants except in relation to the size of the retail component, and the proposal to create at Ravenscraig a sub-regional town centre. Further, I did not understand there to be any dispute that the proposed site of Ravenscraig town centre should be safeguarded, the essential difference between the appellants and the respondents being whether the site should have been included in Schedule 1(a).

[72] Having considered all the submissions made to us on this issue, I do not accept that there is any valid objection, in practice or principle, to the inclusion of Ravenscraig in Schedule 1(a), nor do I consider that its inclusion was perverse or irrational. The Alteration made it clear that it was proposed that there should be a new town centre at Ravenscraig, and that the site should effectively be reserved for that purpose and not permitted to be used for some inappropriate development. Bearing in mind the extent to which a structure plan anticipates future developments, it seems to me that there can be no objection to the proposed new town centre at Ravenscraig being included in Schedule 1(a) in order that it can be protected from inappropriate development and, once it comes into existence, be placed, as far as possible, in the same position as town centres which were already in existence and included in Schedule 1(a). In particular, I do not consider that the inclusion of Ravenscraig in Schedule 1(a) was simply a device to try to avoid the application of NPPG8. I can see no valid reason, when there is a firm proposal for a new town centre at Ravenscraig within the time scale set out in the Structure Plan, and the regeneration of Ravenscraig is regarded as a national priority, why steps should not be taken at this stage to safeguard the town centre for the future by its inclusion in Schedule 1(a).

[73] With regard to the question as to whether or not NPPG8 applied to the retail component proposed at Ravenscraig, the position of the appellants was that the guideline applied, but that the respondents had not taken it into account and had therefore failed to have regard to a relevant factor. The first respondents, on the other hand, submitted that NPPG8 was not directly applicable to the creation of a new town centre, but that in any event they had had regard to factors which related to the retail provision and were set out in paragraph 45. Further, if NPPG8 did apply the sequential approach had, in the particular circumstances of this case, been satisfied.

[74] NPPG8 was issued and revised at a time when there was concern at the increasing number and scale of out-of-centre retail developments. During the 1980s and 1990s there had been growth in new forms of retail and commercial leisure developments outwith traditional centres, such as food superstores and retail parks. One of the policy objectives of the guideline was to protect and enhance the vitality and viability of town centres. The appellants founded heavily on the requirement in NPPG8 that a proposed retail development should, if possible, satisfy the sequential approach. Paragraph 12 stated that planning authorities and developers should adopt a sequential approach to selecting sites for new retail developments. The sequential approach was set out in paragraphs 12 to 16 of NPPG8. It stated that the first preference should be for town centre sites, where they were available, followed by edge-of-centre sites, and only then by out-of-centre sites in locations that were, or could be made, easily accessible by a choice of means of transport. Paragraph 15 stated that only if it could be demonstrated that all town centre options had been thoroughly addressed, and a view taken on availability, could less central sites be considered. Apart from the sequential approach, a proposed retail development was, in terms of paragraph 45(b), not to affect adversely the development plan strategy in support of the town centre, and had to be capable of co-existing with the town centre without individually or cumulatively undermining its vitality and viability. In my opinion, NPPG8 addressed a situation where, adopting the sequential approach, a proposed new retail development was to be directed to a site in an existing town centre, provided that such a site was available. It did not address a situation where a retail development was proposed as part of a comprehensive redevelopment scheme on a brownfield site which involved the creation of a new town centre in the future. It follows, in my view, that the first respondents were not obliged, in considering the proposed Alteration, to comply with the requirements of NPPG8 and, in particular, the considerations set out in paragraph 45(a)-(d).

[75] The approach of the appellants was that the proposed retail development at Ravenscraig had to be treated as an out-of-centre development in respect that it was on a large brownfield site which was, as yet, undeveloped, and no town centre was in existence. In my opinion, however, that approach was quite unrealistic and ignored the fact that the retail component was only proposed as part of a comprehensive redevelopment and as part of the new town centre, the new town centre uses, including the retail component, to be phased in line with the overall development of the Ravenscraig area. It has not been suggested in the Alteration that any of the retail development should proceed on its own and, indeed, it is clear, as counsel for the first respondents accepted, that that would be contrary to the Structure Plan.

[76] The first respondents submitted that NPPG8 was not directly applicable but that they had taken into account the substance of the considerations raised by NPPG8 and there is, in my opinion, no reason to doubt that that was the case. In any event, in terms of paragraph 19(E) of the Supplementary Written Statement any planning application involving around 30,000 square metres of comparison retail floorspace would require to be assessed by reference to the criteria in Schedule 6(c)(i) of the Structure Plan.

[77] The Alteration (in the new paragraph 11.60) provided that the retail floorspace at Ravenscraig was to be included in the new town centre, and that the development of any retail provision should be linked, through programming, to the phased development of a comprehensive redevelopment plan for the Ravenscraig area. In these circumstances I consider that, if NPPG8 did apply to the retail component proposed for the new town centre at Ravenscraig, the sequential approach has been satisfied.

[78] In the preamble to NPPG8 it was acknowledged that statements of Government policy contained in NPPGs and circulars may, so far as relevant, be material considerations to be taken into account in development plan preparation and development control. The interpretation of NPPG8 was a matter for the first respondents, rather than the court, unless there was an issue of irrationality or perversity. In Council of Civil Service Unions v. Minister for the Civil Service, supra, Lord Diplock made the following observations (at page 410G):

"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it".

In R. v. The Secretary of State for the Environment, Transport and the Regions, ex parte Tesco Stores Limited, Keene J. stated (at page 692):

"The test to be applied by the court was that it should only interfere where the decision-maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify. There was ample authority in other areas of the law for this Wednesbury approach to the question".

In the circumstances of this case, I can see no basis for inferring that NPPG8 was misinterpreted or misapplied by the first respondents, and I am satisfied that the first respondents' interpretation cannot be regarded as having been irrational or perverse.

[79] Strategic Policy 6 in the Structure Plan provided for the protection, management and enhancement of town centres as the preferred locations for retailing and other community focused activities. Paragraph 11.54 stated that the network of town centres identified in Schedule 1(a) should be protected, managed and enhanced as the preferred locations for inter alia new retail and town centre uses, and that a sequential approach should be adopted when selecting sites for such uses, as set out in Schedule 6(c)(ii). There is no reference in the Alteration to the need for the adoption of the sequential approach, and in my opinion that is because, as Ravenscraig has been included in Schedule 1(a) and the Alteration supports the creation of a new town centre there to include the retail floorspace, the sequential approach was not a live issue as it had been satisfied.

[80] Once the policy decision to designate a new town centre at Ravenscraig had been made, the question arose as to the scale of the retail component which should be incorporated in that town centre. The reasons for considering the creation of a new sub-regional centre to redress the current imbalanced provision of retail opportunities in the area were set out in Technical Report 9 and in the Supplementary Written Statement, particularly paragraphs 12-18. The decision was taken that around 30,000 square metres of comparison retail floorspace would be acceptable provided that a range of criteria were met. It was not alleged that Technical Report 9 was significantly flawed, and no competing evidence or data were submitted on behalf of the appellants. In the circumstances it seems to me that the policy decision in relation to the size of the retail component that would be acceptable at Ravenscraig, subject to the specified criteria, constituted an exercise of planning judgment, and I have not been persuaded, in the circumstances of this case, that the exercise of that judgment was wrong. In Tesco Stores Limited v. Secretary of State for the Environment, supra, Lord Hoffmann made the following observation (at page 780H-I):

"If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State".

[81] The Alteration recognised (in paragraph 15 of the Supplementary Written Statement) that the potential to develop a sub-regional centre would have varying impacts dependent on the scale of the proposal and format. At about 30,000 square metres of net retail floorspace there would be impacts on other Lanarkshire town centres. Accordingly, paragraph 19(E) stated, inter alia, that a total scale of comparison retail floorspace of around 30,000 square metres would be acceptable subject to it (i) having regard to the criteria in Strategic Policy 6 Schedule 6(c)(i) and (ii) being part of a programme for the support of the Lanarkshire town centres. The second respondents had already obtained a report, namely Technical Report 9, dealing with the impact of a retail development at Ravenscraig based on a number of different hypotheses. The report referred to qualitative deficiencies in existing retail provision, and set out the technical background relating to the scale of the retail development that could be incorporated in the new town centre. The report concluded, inter alia, (1) that a development of 10,000 square metres net would not be likely to have a significant impact except on Wishaw, (2) that a development of over 30,000 square metres would not accord with the Structure Plan and (3) that the significance of the impact of a development of around 30,000 square metres net on Hamilton and Motherwell town centres would, in part, be related to the timing of the retail development relative to the development of the proposals in those centres. The contention of the appellants was that the reference to a programme for the support of the Lanarkshire town centres in paragraph 19(E)(ii) was lacking in specification and that, as this was effectively a strategic requirement, the respondents had abdicated responsibility for it by leaving it to the determination of the local planning authority.

[82] I do not consider that there is any merit in that submission. A structure plan constitutes a strategic overview of future development in the area. The nature and extent of the impact of a retail development of around 30,000 square metres at Ravenscraig must depend on a number of different factors, including the nature and extent of the new floorspace which is to be permitted, its timing and the situation of the other town centres when the retail development at Ravenscraig was to take place. In my opinion, details of the programme of support, always assuming that one proved to be necessary, were not appropriate in the context of the Structure Plan strategic provisions, and properly fell to be determined by the local planning authority once an application for planning permission had been made and the necessary information was available. While the planning authority in the case of an application for planning permission being made in relation to Ravenscraig will be North Lanarkshire Council, it must be borne in mind that the Alteration was promulgated by the second respondents. They comprise all eight of the Councils in the Structure Plan area, and they have been committed to joint action to promote the regeneration of Ravenscraig. In the circumstances there is, in my opinion, no reason to suppose that there would not be collaboration between the Councils and, if necessary, joint action in relation to any programme of support that might be necessary. It would, of course, be open to the first respondents to consider calling in any planning application relating to the comprehensive redevelopment of Ravenscraig.

[83] Reference was also made to the issue of the phasing of the retail development. Paragraph 18 of the Supplementary Written Statement stated that for a proposal of about 30,000 square metres net retail floorspace to be acceptable, it needed, inter alia, to limit its scale and phasing and be linked to the restructuring of both Motherwell and Wishaw. Paragraph 19(C) stated that the town centre related uses should be phased in line with the overall development of the Ravenscraig area. Having regard to the multiplicity of factors which could affect the eventual phasing of the comprehensive redevelopment of Ravenscraig, depending on the content of any application for planning permission which was made and was going to be approved, I consider that it was clearly appropriate that the issue of phasing should be left to the local planning authority. Further, while it was suggested by the appellants that the development of Ravenscraig could be retail-led, I consider that the prospect of the proposed retail component proceeding on its own must be regarded as unrealistic and it would, in any event, be contrary to the provisions of the Structure Plan.

[84] Having considered all the submissions which were made to us in the course of the hearing, I have not been persuaded that the approval of the Alteration was outwith the powers conferred by the Act. In particular, I do not consider that any of the decisions taken by the first respondents in relation to the matters in dispute were perverse or irrational, or failed to have regard to a material consideration. I would refuse the appeals.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood

Lord Marnoch

Lady Cosgrove

[2005CSIH33]

XA3/04

XA2/04

OPINION OF LORD MARNOCH

APPEALS TO THE COURT OF SESSION UNDER SECTION 238 OF THE TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997

(FIRST) THE STANDARD LIFE ASSURANCE COMPANY and (SECOND) LAND SECURITIES GROUP PLC

Appellants;

against

(FIRST) THE SCOTTISH MINISTERS and (SECOND) GLASGOW AND CLYDE VALLEY STRUCTURE PLAN JOINT COMMITTEE

Respondents;

in respect of

_______

30 March 2005

[85] These are appeals under section 238 of the Town and Country Planning (Scotland) Act 1997. The appeals are directed against the First Alteration of the Glasgow and Clyde Valley Structure Plan which, in essence, designates a new Town Centre at the site of the former Ravenscraig Steelworks. We were told that both appellants had invested heavily in the neighbouring town centres of Hamilton and East Kilbride and, quite understandably, they are concerned that the new designation will have an adverse impact or effect on these existing town centres. In particular, they are concerned that the new designation envisages a provision in what is described as a "new subregional Town Centre" of around 30,000 square metres net of comparison retail floorspace which is 23,500 square metres in excess of what is estimated to meet the needs of the new community to be established in the immediate vicinity.

[86] I am greatly indebted to your Lordship in the chair for setting out so fully the details of the various planning documents and the lengthy submissions which were made to us. It is fair to say, however, that as the debate progressed the real issues which divided the parties became increasingly crystallised and I venture to think that a lot of the earlier material lost much of its apparent importance. At all events, the appeals came to be rested on four legal submissions which were confirmed in writing as being in the following terms:

"(1) The First Respondents failed to have proper regard to the terms of

NPPG 8. In particular, they misinterpreted the policy guidance in relation to the proposals contained in the Alteration. By proceeding upon the basis that NPPG8 does not apply to the identification of new town centres in the development plan or the creation of new retail development within the new town centre, they failed to address obvious inconsistencies between the established policy criteria in NPPG8 and the new retail proposals contained in the Alteration. The Appellants do not shrink from the proposition that to succeed on this ground it is necessary to satisfy the court that the Scottish Ministers have proceeded upon an interpretation of NPPG8 that no reasonable decision maker could have made.

(2) The approach taken by the Scottish Ministers is that whilst NPPG8

paragraph 45 is not relevant they took into account the substance of this. They had no material before them to justify the conclusion that a qualitative deficiency in the retail provision within this area could not be met in or on the edge of the existing Town Centres. They had no material before them to justify the conclusion that the proposed subregional centre is consistent with NPPG8.

(3) The Scottish Ministers decision proceeded upon a misunderstanding or

misapplication of the policies of the unaltered SP and was unreasonable. To include Ravenscraig in Schedule 1a is perverse and unreasonable and proceeds upon a material misunderstanding or misapplication of Schedule 1a and its supporting policies. Schedule 1a in GCVSP is a list of those Town Centres forming part of the existing framework of Town Centres. To afford Ravenscraig the same status as the constituents of the existing framework undermines the policy of sustaining that existing framework.

(4) In approaching the matter on the basis that the impact on H and EK

was acceptable, the SM failed to have proper regard to Strategic Policy 6(c) as explained in paragraph 11.53 of the GCVSP and Para 45(b) of NPPG8. The requirement in paragraph 19(E)(ii) of the Alteration that the proposed subregional centre would be acceptable subject to it 'being part of a programme of support of the Lanarkshire Town Centres' does not address the requirements of Strategic Policy 6(c) or paragraph 45(b). The SM could not reasonably conclude that paragraph 19(E)(ii) and 19E(iii) addressed the requirements of Strategic Policy 6(c) or paragraph 45(b)."

[87] I deal with each of the foregoing in turn.

[88] As regards the first of these submission, I am of opinion that it was entirely reasonable for the Scottish Ministers (the "first respondents") to take the view that the Policy Document NPPG8 did not apply to the identification of new town centres in the Development Plan or the creation of new retail development within such a centre. Indeed, following a perusal of NPPG8 I consider that to be the obvious conclusion. As is made abundantly clear by the terms of the First Alteration the designation of a new Town Centre at Ravenscraig is a unitary concept which proceeds upon a number of wide-ranging planning judgments and which falls well outwith the scope of NPPG8. In approving as part of the designation up to 30,000 square metres net of comparison retail floorspace it was, of course, necessary for the Scottish Ministers to have some regard for the effect of such a provision on neighbouring town centres but, in my opinion, this was something which could properly be done quite independently of the detailed provisions of NPPG8.

[89] The second submission advanced is, in my opinion, almost indistinguishable from the first but, in any event, the answer is in my opinion the same, namely that NPPG8 is simply not applicable in the circumstances of the present case.

[90] As regards the third submission, it respectfully seems to me that, once the decision is taken to designate Ravenscraig as a new Town Centre, there is absolutely no reason why its development should not be encouraged by including Ravenscraig in Schedule 1(a) of the Structure Plan. Indeed, since the Centre is, as it were, being developed from "scratch", it might be thought perverse not so to include it. Senior counsel for the appellant submitted that its inclusion as a bare location in Schedule 1(a) was contradictory of other parts of the Structure Plan and simply unworkable. In my opinion, however, these difficulties disappear when one envisages the physical growth over the years of the new Ravenscraig. As Mr. Keen put it, the Structure Plan, as altered, contains not a snapshot of the present but a "strategic vision of what will be there in twenty years time".

[91] The fourth and last submission made to us on behalf of the appellants again proceeds on the basis that the retail provision at Ravenscraig should, for purposes of the Structure Plan and NPPG8, be considered in isolation from the designation of Ravenscraig as a Town Centre. For the reasons given above I consider this approach to be wholly without merit. However, senior counsel submitted that, if necessary, the complaints made anent the inadequacy of paragraph 19E(ii) and (iii) of the Alteration could be looked at independently. In that connection, I do recognise that the requirement in paragraph 19E(ii) that the proposed sub-regional centre should be "part of a programme of support of the Lanarkshire town centres", without further specification, is a somewhat vague attempt to deal with the possible impacts of the development as assessed for Hamilton and East Kilbride in Technical Report 9 (No. 6/10 of process). The same might be said of paragraph 19E(i) of the Alteration which, in the end, appears to mean only that any application for development at Ravenscraig will be assessed against a number of criteria including "impact ... on the town centres listed in Schedule 1(a)". I confess it is this aspect of the appeals which troubled me most during the course of the hearing. It must, however, be borne in mind that the compilers of Technical Report 9 did not themselves regard the assessed impacts on Hamilton and East Kilbride as being particularly significant. In any event, for the reasons set out by your Lordship in the chair I have come to be persuaded that it would be quite impracticable to make either of these provisions any more specific in the context of the overall strategic planning of the area covered by the Structure Plan. In that context it is, in my view, sufficient that the decision has been taken that the scale of comparison retail floorspace at Ravenscraig should not exceed a total of around 30,000 square metres net.

[92] For all the foregoing reasons I am in complete agreement with your Lordship in the chair that these appeals should be refused.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kirkwood

Lord Marnoch

Lady Cosgrove

[2005CSIH33]

XA3/04

XA2/04

OPINION OF LADY COSGROVE

APPEALS TO THE COURT OF SESSION UNDER SECTION 238 OF THE TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997

(FIRST) THE STANDARD LIFE ASSURANCE COMPANY and (SECOND) LAND SECURITIES GROUP PLC